Lefkow v. Taylor, 140 Ill. App. 570 (1908)

April 17, 1908 · Illinois Appellate Court · Gen. No. 13,946

140 Ill. App. 570

Alphonse Lefkow, Appellee, v. Oel B. Taylor, Elof Johnson and Robert M. Mitchell, Appellants.

Gen. No. 13,946.

Pleading—what non est factum does not put in issue. A non-verified plea of non est factum does not put the plaintiff upon proof of the execution of the bond declared upon.

Action of debt. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1907.

Affirmed.

Opinion filed April 17, 1908.

John Stuart Egberts, for appellant.

Ft,op Johnson and Farlin H. Ball, for appellee.

Mr. Justice Smith

delivered the opinion of the court.

This action was brought in the Municipal Court of Chicago by the appellee Lefkow, as administrator, to collect of the estate of one Margaret Taylor, deceased, on an appeal bond executed by appellants in an appeal from the Probate Court of Cook county, Illinois, to the Circuit Court by said Taylor from an order of said Probate Court directing him to pay to appellee as such administrator the sum of $973.

The declaration sets out the execution of the bond and its terms and conditions, the order of the Probate Court, and that on March-2, 1907, said order was affirmed in said Circuit Court, and that Taylor has not paid the money.

A plea of non est factum, not verified, was filed by appellant Johnson, the only defendant served with process, and plaintiff below, appellee, took issue on the plea.

The cause was tried on the issue thus presented by the court without a jury. The court found that the defendant Johnson was indebted to the plaintiff in the sum of $1,946 for his debt, and assessed the plaintiff’s damages at the sum of $1,071.40 and entered judgment therefor and for $10.35 costs, the debt to be discharged on the payment of damages. From this judgment this appeal is prosecuted.

The only point made in appellant’s brief and argument is that the plaintiff did not make out his case by his evidence.

The record shows that on the trial appellee offered in evidence the original appeal bond, and a certified bill of costs in the Circuit Court of Cook county. This was all the evidence necessary to maintain the action under the issues joined. It was not incumbent upon appellee to prove the execution of the bond, for the plea was not sworn to. Sec. 34, chap. 110, Starr & Curtis’s Revised Statutes; Horner v. Boyden, 27 Ill. App. 573; Herrick v. Swartwout, 72 Ill. 340. All the other averments of the declaration “stood solemnly admitted upon the record.” Shunick v. Thompson, 25 Ill. App. 619, 626. The costs of the additional abstract of record will be taxed against appellant.

The judgment is affirmed.

Affirmed.